ملاحظات (21) تا (40)

(21) Where several persons or entities are considered to be users, for example in the case of co-ownership or where an owner, renter or lessee shares rights of data access or use, the design of the connected product or related service, or the relevant interface, should enable each user to have access to the data they generate. Use of connected products that generate data typically requires a user account to be set up. Such an account allows the user to be identified by the data holder, which may be the manufacturer. It can also be used as a means of communication and to submit and process data access requests. Where several manufacturers or related services providers have sold, rented or leased connected products or provided related services, integrated together, to the same user, the user should turn to each of the parties with which it has a contract. Manufacturers or designers of a connected product that is typically used by several persons should put in place the necessary mechanisms to allow separate user accounts for individual persons, where relevant, or for the possibility of several persons using the same user account. Account solutions should allow users to delete their accounts and erase the data related to them and could allow users to terminate data access, use or sharing, or submit requests to terminate, in particular taking into account situations in which the ownership or usage of the connected product changes. Access should be granted to the user on the basis of simple request mechanism granting automatic execution and not requiring examination or clearance by the manufacturer or data holder. This means that the data should be made available only when the user actually wants access. Where automated execution of the data access request is not possible, for example via a user account or accompanying mobile application provided with the connected product or related service, the manufacturer should inform the user as to how the data may be accessed.

(22) Connected products may be designed to make certain data directly accessible from on-device data storage or from a remote server to which the data are communicated. Access to on-device data storage may be enabled via cable-based or wireless local area networks connected to a publicly available electronic communications service or mobile network. The server may be the manufacturer’s own local server capacity or that of a third party or a cloud service provider. Processors as defined in Article 4, point (8), of Regulation (EU) 2016/679 are not considered to act as data holders. However, they can be specifically tasked with making data available by the controller as defined in Article 4, point (7), of Regulation (EU) 2016/679. Connected products may be designed to permit the user or a third party to process the data on the connected product, on a computing instance of the manufacturer or within an information and communications technology (ICT) environment chosen by the user or the third party.

(23) Virtual assistants play an increasing role in digitising consumer and professional environments and serve as an easy-to-use interface to play content, obtain information, or activate products connected to the internet. Virtual assistants can act as a single gateway in, for example, a smart home environment and record significant amounts of relevant data on how users interact with products connected to the internet, including those manufactured by other parties, and can replace the use of manufacturer-provided interfaces such as touch screens or smartphone apps. The user may wish to make available such data to third party manufacturers and enable novel smart services. Virtual assistants should be covered by the data access rights provided for in this Regulation. Data generated when a user interacts with a connected product via a virtual assistant provided by an entity other than the manufacturer of the connected product should also be covered by the data access rights provided for in this Regulation. However, only the data arising from the interaction between the user and a connected product or related service through the virtual assistant should be covered by this Regulation. Data produced by the virtual assistant which are unrelated to the use of a connected product or related service are not covered by this Regulation.

(24) Before concluding a contract for the purchase, rent, or lease of a connected product, the seller, rentor or lessor, which may be the manufacturer, should provide to the user information regarding the product data which the connected product is capable of generating, including the type, format and the estimated volume of such data, in a clear and comprehensible manner. This could include information on data structures, data formats, vocabularies, classification schemes, taxonomies and code lists, where available, as well as clear and sufficient information relevant for the exercise of the user’s rights on how the data may be stored, retrieved or accessed, including the terms of use and quality of service of application programming interfaces or, where applicable, the provision of software development kits. That obligation provides transparency over the product data generated and enhances easy access for the user. The information obligation could be fulfilled, for example by maintaining a stable uniform resource locator (URL) on the web, which can be distributed as a web link or QR code, pointing to the relevant information, which could be provided by the seller, rentor or lessor, which may be the manufacturer, to the user before concluding the contract for the purchase, rent or lease of a connected product. It is, in any case, necessary that the user is able to store the information in a way that is accessible for future reference and that allows the unchanged reproduction of the information stored. The data holder cannot be expected to store the data indefinitely in view of the needs of the user of the connected product, but should implement a reasonable data retention policy, where applicable, in line with storage limitation principle pursuant Article 5(1), point (e), of Regulation (EU) 2016/679, that allows for the effective application of the data access rights provided for in this Regulation. The obligation to provide information does not affect the obligation of the controller to provide information to the data subject pursuant to Articles 12, 13 and 14 of Regulation (EU) 2016/679. The obligation to provide information before concluding a contract for the provision of a related service should lie with the prospective data holder, independently of whether the data holder concludes a contract for the purchase, rent or lease of a connected product. Where information changes during the lifetime of the connected product or the contract period for the related service, including where the purpose for which those data are to be used changes from the originally specified purpose, it should also be provided to the user.

(25) This Regulation should not be understood to confer any new right on data holders to use product data or related service data. Where the manufacturer of a connected product is a data holder, the basis for the manufacturer to use non-personal data should be a contract between the manufacturer and the user. Such a contract could be part of an agreement for the provision of the related service, which could be concluded together with the purchase, rent or lease agreement relating to the connected product. Any contractual term stipulating that the data holder may use product data or related service data should be transparent to the user, including regarding the purposes for which the data holder intends to use the data. Such purposes could include improving the functioning of the connected product or related services, developing new products or services, or aggregating data with the aim of making available the resulting derived data to third parties, provided that such derived data do not allow the identification of specific data transmitted to the data holder from the connected product, or allow a third party to derive those data from the dataset. Any change of the contract should depend on the informed agreement of the user. This Regulation does not prevent parties from agreeing on contractual terms the effect of which is to exclude or limit the use of non-personal data, or certain categories of non-personal data, by a data holder. Neither does it prevent parties from agreeing to make product data or related service data available to third parties, directly or indirectly, including, where applicable, via another data holder. Moreover, this Regulation does not prevent sector-specific regulatory requirements under Union law, or national law compatible with Union law, which would exclude or limit the use of certain such data by the data holder on well-defined public policy grounds. This Regulation does not prevent users, in the case of business-to-business relations, from making data available to third parties or data holders under any lawful contractual term, including by agreeing to limit or restrict further sharing of such data, or from being compensated proportionately, for example in exchange for waiving their right to use or share such data. While the notion of ‘data holder’ generally does not include public sector bodies, it may include public undertakings.

(26) To foster the emergence of liquid, fair and efficient markets for non-personal data, users of connected products should be able to share data with others, including for commercial purposes, with minimal legal and technical effort. It is currently often difficult for businesses to justify the personnel or computing costs that are necessary for preparing non-personal datasets or data products and to offer them to potential counterparties via data intermediation services, including data marketplaces. A substantial hurdle to the sharing of non-personal data by businesses therefore results from the lack of predictability of economic returns from investing in the curation and making available of datasets or data products. In order to allow for the emergence of liquid, fair and efficient markets for non-personal data in the Union, the party that has the right to offer such data on a market must be clarified. Users should therefore have the right to share non-personal data with data recipients for commercial and non-commercial purposes. Such data sharing could be performed directly by the user, upon the request of the user via a data holder, or through data intermediation services. Data intermediation services, as regulated by Regulation (EU) 2022/868 of the European Parliament and of the Council (22) could facilitate a data economy by establishing commercial relationships between users, data recipients and third parties and may support users in exercising their right to use data, such as ensuring the anonymisation of personal data or aggregation of access to data from multiple individual users. Where data are excluded from a data holder’s obligation to make them available to users or third parties, the scope of such data could be specified in the contract between the user and the data holder for the provision of a related service so that users can easily determine which data are available to them for sharing with data recipients or third parties. Data holders should not make available non-personal product data to third parties for commercial or non-commercial purposes other than the fulfilment of their contract with the user, without prejudice to legal requirements pursuant to Union or national law for a data holder to make data available. Where relevant, data holders should contractually bind third parties not to further share data received from them.

(27) In sectors characterised by the concentration of a small number of manufacturers supplying connected products to end users, there may only be limited options available to users for the access to and the use and sharing of data. In such circumstances, contracts may be insufficient to achieve the objective of user empowerment, making it difficult for users to obtain value from the data generated by the connected product they purchase, rent or lease. Consequently, there is limited potential for innovative smaller businesses to offer data-based solutions in a competitive manner and for a diverse data economy in the Union. This Regulation should therefore build on recent developments in specific sectors, such as the Code of Conduct on agricultural data sharing by contract. Union or national law may be adopted to address sector-specific needs and objectives. Furthermore, data holders should not use any readily available data that is non-personal data in order to derive insights about the economic situation of the user or its assets or production methods or about such use by the user in any other manner that could undermine the commercial position of that user on the markets in which it is active. This could include using knowledge about the overall performance of a business or a farm in contractual negotiations with the user on the potential acquisition of the user’s products or agricultural produce to the user’s detriment, or using such information to feed into larger databases on certain markets in the aggregate, for example databases on crop yields for the upcoming harvesting season, as such use could affect the user negatively in an indirect manner. The user should be given the necessary technical interface to manage permissions, preferably with granular permission options such as ‘allow once’ or ‘allow while using this app or service’, including the option to withdraw such permissions.

(28) In contracts between a data holder and a consumer as user of a connected product or related service generating data, Union consumer law, in particular Directives 93/13/EEC and 2005/29/EC, applies to ensure that a consumer is not subject to unfair contractual terms. For the purposes of this Regulation, unfair contractual terms unilaterally imposed on an enterprise should not be binding on that enterprise.

(29) Data holders may require appropriate user identification to verify a user’s entitlement to access the data. In the case of personal data processed by a processor on behalf of the controller, data holders should ensure that the access request is received and handled by the processor.

(30) The user should be free to use the data for any lawful purpose. This includes providing the data the user has received while exercising its rights under this Regulation to a third party offering an aftermarket service that may be in competition with a service provided by a data holder, or to instruct the data holder to do so. The request should be submitted by the user or by an authorised third party acting on a user’s behalf, including a provider of a data intermediation service. Data holders should ensure that the data made available to the third party is as accurate, complete, reliable, relevant and up-to-date as the data the data holder itself may be able or entitled to access from the use of the connected product or related service. Any intellectual property rights should be respected in the handling of the data. It is important to preserve incentives to invest in products with functionalities based on the use of data from sensors built into those products.

(31) Directive (EU) 2016/943 of the European Parliament and of the Council (23) provides that the acquisition, use or disclosure of a trade secret shall be considered to be lawful, inter alia, where such acquisition, use or disclosure is required or allowed by Union or national law. While this Regulation requires data holders to disclose certain data to users, or third parties of a user’s choice, even when such data qualify for protection as trade secrets, it should be interpreted in such a manner as to preserve the protection afforded to trade secrets under Directive (EU) 2016/943. In this context, data holders should be able to require users, or third parties of a user’s choice, to preserve the confidentiality of data considered to be trade secrets. To that end, data holders should identify trade secrets prior to the disclosure, and should have the possibility to agree with users, or third parties of a user’s choice, on necessary measures to preserve their confidentiality, including by the use of model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct. In addition to the use of model contractual terms to be developed and recommended by the Commission, the establishment of codes of conduct and technical standards related to the protection of trade secrets in handling the data could help achieve the aim of this Regulation and should be encouraged. Where there is no agreement on the necessary measures or where a user, or third parties of the user’s choice, fail to implement agreed measures or undermine the confidentiality of the trade secrets, the data holder should be able to withhold or suspend the sharing of data identified as trade secrets. In such cases, the data holder should provide the decision in writing to the user or to the third party without undue delay and notify the competent authority of the Member State in which the data holder is established that it has withheld or suspended data sharing and identify which measures have not been agreed or implemented and, where relevant, which trade secrets have had their confidentiality undermined. Data holders cannot, in principle, refuse a data access request under this Regulation solely on the basis that certain data is considered to be a trade secret, as this would subvert the intended effects of this Regulation. However, in exceptional circumstances, a data holder who is a trade secret holder should be able, on a case-by-case basis, to refuse a request for the specific data in question if it is able to demonstrate to the user or to the third party that, despite the technical and organisational measures taken by the user or by the third party, serious economic damage is highly likely to result from the disclosure of that trade secret. Serious economic damage implies serious and irreparable economic loss. The data holder should duly substantiate its refusal in writing without undue delay to the user or to the third party and notify the competent authority. Such a substantiation should be based on objective elements, demonstrating the concrete risk of serious economic damage expected to result from a specific data disclosure and the reasons why the measures taken to safeguard the requested data are not considered to be sufficient. A possible negative impact on cybersecurity can be taken into account in that context. Without prejudice to the right to seek redress before a court or tribunal of a Member State, where the user or a third party wishes to challenge the data holder’s decision to refuse or to withhold or suspend data sharing, the user or the third party can lodge a complaint with the competent authority, which should, without undue delay, decide whether and under which conditions data sharing should start or resume, or can agree with the data holder to refer the matter to a dispute settlement body. The exceptions to data access rights in this Regulation should not in any case limit the right of access and right to data portability of data subjects under Regulation (EU) 2016/679.

(32) The aim of this Regulation is not only to foster the development of new, innovative connected products or related services, stimulate innovation on aftermarkets, but also to stimulate the development of entirely novel services making use of the data concerned, including based on data from a variety of connected products or related services. At the same time, this Regulations aims to avoid undermining the investment incentives for the type of connected product from which the data are obtained, for instance, by the use of data to develop a competing connected product which is considered to be interchangeable or substitutable by users, in particular on the basis of the connected product’s characteristics, its price and intended use. This Regulation provides for no prohibition on the development of a related service using data obtained under this Regulation as this would have an undesirable discouraging effect on innovation. Prohibiting the use of data accessed under this Regulation for developing a competing connected product protects data holders’ innovation efforts. Whether a connected product competes with the connected product from which the data originates depends on whether the two connected products are in competition on the same product market. This is to be determined on the basis of the established principles of Union competition law for defining the relevant product market. However, lawful purposes for the use of the data could include reverse engineering, provided that it complies with the requirements laid down in this Regulation and in Union or national law. This may be the case for the purposes of repairing or prolonging the lifetime of a connected product or for the provision of aftermarket services to connected products.

(33) A third party to whom data is made available may be a natural or legal person, such as a consumer, an enterprise, a research organisation, a not-for-profit organisation or an entity acting in a professional capacity. In making the data available to the third party, a data holder should not abuse its position to seek a competitive advantage in markets where the data holder and the third party may be in direct competition. The data holder should not therefore use any readily available data in order to derive insights about the economic situation, assets or production methods of, or the use by, the third party in any other manner that could undermine the commercial position of the third party on the markets in which the third party is active. The user should be able to share non-personal data with third parties for commercial purposes. Upon the agreement with the user, and subject to the provisions of this Regulation, third parties should be able to transfer the data access rights granted by the user to other third parties, including in exchange for compensation. Business-to-business data intermediaries and personal information management systems (PIMS), referred to as data intermediation services in Regulation (EU) 2022/868, may support users or third parties in establishing commercial relations with an undetermined number of potential counterparties for any lawful purpose falling within the scope of this Regulation. They could play an instrumental role in aggregating access to data so that big data analyses or machine learning can be facilitated, provided that users remain in full control of whether to provide their data to such aggregation and the commercial terms under which their data are to be used.

(34) The use of a connected product or related service may, in particular when the user is a natural person, generate data that relates to the data subject. Processing of such data is subject to the rules established under Regulation (EU) 2016/679, including where personal and non-personal data in a dataset are inextricably linked. The data subject may be the user or another natural person. Personal data may only be requested by a controller or a data subject. A user who is the data subject is, under certain circumstances, entitled under Regulation (EU) 2016/679 to access personal data concerning that user and such rights are unaffected by this Regulation. Under this Regulation, the user who is a natural person is further entitled to access all data generated by the use of a connected product, whether personal or non-personal. Where the user is not the data subject but an enterprise, including a sole trader, and not in cases of shared household use of the connected product, the user is considered to be a controller. Accordingly, such a user who as controller intends to request personal data generated by the use of a connected product or related service is required to have a legal basis for processing the data as required by Article 6(1) of Regulation (EU) 2016/679, such as the consent of the data subject or the performance of a contract to which the data subject is a party. Such user should ensure that the data subject is appropriately informed of the specified, explicit and legitimate purposes for processing those data, and of how the data subject may exercise their rights effectively. Where the data holder and the user are joint controllers within the meaning of Article 26 of Regulation (EU) 2016/679, they are required to determine, in a transparent manner by means of an arrangement between them, their respective responsibilities for compliance with that Regulation. It should be understood that such a user, once data has been made available, may in turn become a data holder if that user meets the criteria under this Regulation and thus becomes subject to the obligations to make data available under this Regulation.

(35) Product data or related service data should only be made available to a third party at the request of the user. This Regulation complements accordingly the right, provided for in Article 20 of Regulation (EU) 2016/679, of data subjects to receive personal data concerning them in a structured, commonly used and machine-readable format, as well as to port those data to another controller, where those data are processed by automated means on the basis of Article 6(1), point (a), or Article 9(2), point (a), or of a contract pursuant to Article 6(1), point (b) of that Regulation. Data subjects also have the right to have the personal data transmitted directly from one controller to another, but only where that is technically feasible. Article 20 of Regulation (EU) 2016/679 specifies that it pertains to data provided by the data subject but does not specify whether this necessitates active behaviour on the side of the data subject or whether it also applies to situations where a connected product or related service, by its design, observes the behaviour of a data subject or other information in relation to a data subject in a passive manner. The rights provided for under this Regulation complement the right to receive and port personal data under Article 20 of Regulation (EU) 2016/679 in a number of ways. This Regulation grants users the right to access and make available to a third party any product data or related service data, irrespective of their nature as personal data, of the distinction between actively provided or passively observed data, and irrespective of the legal basis of processing. Unlike Article 20 of Regulation (EU) 2016/679, this Regulation mandates and ensures the technical feasibility of third party access for all types of data falling within its scope, whether personal or non-personal, thereby ensuring that technical obstacles no longer hinder or prevent access to such data. It also allows data holders to set reasonable compensation to be met by third parties, but not by the user, for costs incurred in providing direct access to the data generated by the user’s connected product. If a data holder and a third party are unable to agree on terms for such direct access, the data subject should in no way be prevented from exercising the rights laid down in Regulation (EU) 2016/679, including the right to data portability, by seeking remedies in accordance with that Regulation. It is to be understood in this context that, in accordance with Regulation (EU) 2016/679, a contract does not allow for the processing of special categories of personal data by the data holder or the third party.

(36) Access to any data stored in and accessed from terminal equipment is subject to Directive 2002/58/EC and requires the consent of the subscriber or user within the meaning of that Directive unless it is strictly necessary for the provision of an information society service explicitly requested by the user or by the subscriber or for the sole purpose of the transmission of a communication. Directive 2002/58/EC protects the integrity of a user’s terminal equipment regarding the use of processing and storage capabilities and the collection of information. Internet of Things equipment is considered to be terminal equipment if it is directly or indirectly connected to a public communications network.

(37) In order to prevent the exploitation of users, third parties to whom data has been made available at the request of the user should process those data only for the purposes agreed with the user and share them with another third party only with the agreement of the user to such data sharing.

(38) In line with the data minimisation principle, third parties should access only information that is necessary for the provision of the service requested by the user. Having received access to data, the third party should process it for the purposes agreed with the user without interference from the data holder. It should be as easy for the user to refuse or discontinue access by the third party to the data as it is for the user to authorise access. Neither third parties nor data holders should make the exercise of choices or rights by the user unduly difficult, including by offering choices to the user in a non-neutral manner, or by coercing, deceiving or manipulating the user, or by subverting or impairing the autonomy, decision-making or choices of the user, including by means of a user digital interface or a part thereof. In that context, third parties or data holders should not rely on so-called ‘dark patterns’ in designing their digital interfaces. Dark patterns are design techniques that push or deceive consumers into decisions that have negative consequences for them. Those manipulative techniques can be used to persuade users, in particular vulnerable consumers, to engage in unwanted behaviour, to deceive users by nudging them into decisions on data disclosure transactions or to unreasonably bias the decision-making of the users of the service in such a way as to subvert or impair their autonomy, decision-making and choice. Common and legitimate commercial practices that comply with Union law should not in themselves be regarded as constituting dark patterns. Third parties and data holders should comply with their obligations under relevant Union law, in particular the requirements laid down in Directives 98/6/EC (24) and 2000/31/EC (25) of the European Parliament and of the Council and in Directives 2005/29/EC and 2011/83/EU.

(39) Third parties should also refrain from using data falling within the scope of this Regulation to profile individuals unless such processing activities are strictly necessary to provide the service requested by the user, including in the context of automated decision-making. The requirement to erase data when no longer required for the purpose agreed with the user, unless otherwise agreed in relation to non-personal data, complements the data subject’s right to erasure pursuant to Article 17 of Regulation (EU) 2016/679. Where a third party is a provider of a data intermediation service, the safeguards for the data subject provided for by Regulation (EU) 2022/868 apply. The third party may use the data to develop a new and innovative connected product or related service but not to develop a competing connected product.

(40) Start-ups, small enterprises, enterprises that qualify as a medium-sized enterprises under Article 2 of the Annex to Recommendation 2003/361/EC and enterprises from traditional sectors with less-developed digital capabilities struggle to obtain access to relevant data. This Regulation aims to facilitate access to data for those entities, while ensuring that the corresponding obligations are as proportionate as possible to avoid overreach. At the same time, a small number of very large enterprises have emerged with considerable economic power in the digital economy through the accumulation and aggregation of vast volumes of data and the technological infrastructure for monetising them. Those very large enterprises include undertakings that provide core platform services controlling whole platform ecosystems in the digital economy and which existing or new market operators are unable to challenge or contest. Regulation (EU) 2022/1925 of the European Parliament and of the Council (26) aims to redress those inefficiencies and imbalances by allowing the Commission to designate an undertaking as a ‘gatekeeper’, and imposes a number of obligations on such gatekeepers, including a prohibition to combine certain data without consent and an obligation to ensure effective rights to data portability under Article 20 of Regulation (EU) 2016/679. In accordance with Regulation (EU) 2022/1925, and given the unrivalled ability of those undertakings to acquire data, it is not necessary to achieve the objective of this Regulation, and would therefore be disproportionate for data holders made subject to such obligations, to include gatekeeper as beneficiaries of the data access right. Such inclusion would also likely limit the benefits of this Regulation for SMEs, linked to the fairness of the distribution of data value across market actors. This means that an undertaking that provides core platform services that has been designated as a gatekeeper cannot request or be granted access to users’ data generated by the use of a connected product or related service or by a virtual assistant pursuant to this Regulation. Furthermore, third parties to whom data are made available at the request of the user may not make the data available to a gatekeeper. For instance, the third party may not subcontract the service provision to a gatekeeper. However, this does not prevent third parties from using data processing services offered by a gatekeeper. Nor does it prevent those undertakings from obtaining and using the same data through other lawful means. The access rights provided for in this Regulation contribute to a wider choice of services for consumers. As voluntary agreements between gatekeepers and data holders remain unaffected, the limitation on granting access to gatekeepers would not exclude them from the market or prevent them from offering their services.